November 12, 1933 – First Legal Sunday Football Games in Pennsylvania

In 1682 Pennsylvania enacted its first “blue law” relating to worldly business on Sundays, the Christian Sabbath. The law prescribed criminal sanctions for “Whoever does or performs any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday, works of necessity and charity only exempted, or uses or practices any game, hunting, shooting, sport or diversion whatsoever on the same day not authorized by law.”

(But not on Sunday)

Per the Pittsburgh Post-Gazette, the ban carried over when Pennsylvania became a state in 1787, and was re-enacted by the Pennsylvania Legislature almost verbatim in 1939.

But as the AP reports:

Pennsylvania’s prohibition on Sunday sports finally bent, but didn’t break, with the public’s demand to be able to see professional teams such as the Philadelphia Athletics.

In 1933, lawmakers enacted compromise legislation. Baseball and football could be played on Sunday between 2 and 6 p.m., if local voters approved a referendum. Most of the larger cities and towns approved.”

In fact, voters in Pittsburgh and Philadelphia overwhelmingly endorsed Sunday baseball and football, by 7 to 1 margins. (See, J. Thomas Jable, “Sunday Sport Comes to Pennsylvania,” online here.)

On November 12, 1933 – this day in history, and the first Sunday after the sports exception was signed into law, the Philadelphia Eagles and Pittsburgh Steelers played Pennsylvania’s first Sunday football games. The Eagles tied the Chicago Bears in front of 20,000 fans in Philadelphia, and the Steelers (then known as the Pittsburgh Pirates) lost to the Brooklyn Dodgers in front of 12,000 fans in Pittsburgh. [The Brooklyn Dodgers were an American football team that played in the National Football League from 1930 to 1943, and in 1944 as the Brooklyn Tigers.]

It wasn’t until 1978 that the State Supreme Court ruled that the blue laws were unconstitutional, because the legislation caused “different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the particular statute.” Justice Louis L. Manderino, writing for the court in Kroger Co. v. O’Hara Tp. (481 Pa. 101), pointed out:

The Sunday Trading Laws as a whole must fail when examined in this light. There is no fair and substantial relationship between the objective of providing a uniform day of rest and recreation and in permitting the sale of novelties but not Bibles and bathing suits; in permitting the sale of fresh meat patties but not frozen meat patties; or in permitting the installation of an electric meter but not a T.V. antenna.”

The Court did say, however, that the Legislature could re-enact certain Sunday prohibitions if they were uniformly enforced.

October 22, 2003 – Dog Fouling (Scotland) Act 2003 Comes Into Force

In January, 2021 the UK Guardian reported that there were an estimated 9 million dogs in the UK each producing about 340g of waste a day – or slightly more than 3,000 tonnes between them. The paper observed: “The issue is of more than merely scatological interest.” Dog poop, they note, is full of viruses and bacteria, and moreover, arouses the ire of those who unfortunately step on it while out and about.

In Scotland, approximately 24% of households have dogs. A Highland Council Press release stated:

Almost 7 in 10 people rated dog mess as the item on our streets, parks and beaches that bothered them most; that is the finding of recent research into public attitudes to littering carried out by Keep Scotland Beautiful. . . “

The UK as a whole has taken a number of legal measures to alleviate the situation.

The Dogs (Fouling of Land) Act 1996 was an act of the UK Parliament which created a criminal offense if a dog defecated at any time on designated land and the person in charge of the dog at that time failed to remove the feces from the land.

Poster created by Keep Scotland Beautiful

It was repealed by Clean Neighbourhoods and Environment Act 2005 section 65, and replaced by similar legislation in the same act. But the act applied only in England and Wales. The situation was not regulated in Scotland until the passing of the Dog Fouling (Scotland) Act 2003.

The Dog Fouling (Scotland) Act 2003 repealed the dog fouling provisions of the Civic Government (Scotland) Act 1982, changing the emphasis of the offense from allowing a dog to foul in any public place to failing to clean up after it. It also introduced additional enforcement provisions to allow officers of local authorities and the police the option of issuing fixed penalty notices to those persons they believe have committed an offense. The full text of the act is here.

In 2016 the fixed penalty for leaving dog fouling was increased to £80, and can in some cases lead to conviction and a fine of up to £500.

Sign in Brora, Scotland

Review of “Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age” by Amy Klobuchar with John D. Bessler, Contributor

Senator Amy Klobuchar and I graduated from the same law school, the University of Chicago. My favorite course in law school was called “Competition and Monopoly,” which dealt with American antitrust law and the economics behind that body of law. It was taught jointly by three distinguished professors: Edward Levi, who later became Attorney General of the United States in Gerald Ford’s presidency; Phil Neal, who later became dean of the law school; and Aaron Director, an eminent economist who was one of the principal founders of the “Chicago School” of economics.

I mention this course because the legal analysis in the first third of Amy Klobuchar’s Antitrust could have been written from my class notes. But her book is not pure legal analysis (for which there is a relatively limited market); indeed, she augments her narrative with important political and (somewhat) relevant personal family history. A strength of the book is that it relates the early history of federal antitrust law (the late 19th century) when “robber barons” like John D. Rockefeller and James J. Hill are thought to have dominated the American economy through the use of “trusts,” i.e., agreements that eliminated competition between the largest producers either through merger or less formal agreements to refrain from competing.

The early thrust of antitrust law, led by Presidents Teddy Roosevelt and William Howard Taft, was to stimulate competition among producers by dismantling uncompetitive agreements among large companies. Indeed, the government was able to break up monopolies in large industries like oil, railroads, steel, sugar, and tobacco, among others. Klobuchar’s legal analysis and history about that era are accurate — at least they agree with my understanding and with what was taught at the University of Chicago Law School.

The Great Depression changed the way many scholars, judges, and economic regulators viewed antitrust law. Things were so bad that even monopolists and price fixers had a hard time making money. In an effort to forestall some firms from going out of business, FDR’s New Dealers under the National Recovery Act actually encouraged price fixing to prevent prices from plummeting. With the passage of the Robinson-Patman Act in 1936, emphasis of antitrust enforcement had switched from preventing monopolistic industry structure to protecting “small businesses” from ostensibly uncompetitive practices of larger firms.

This change of emphasis led to some very confused thinking. Should competitors compete hard, but not too hard? If low prices are obviously good for consumers, how do we determine whether a price is “too low”? How can we protect vigorous competition and still protect weak competitors? These kinds of considerations led to some very confusing court decisions.

A group of economists and legal scholars, most of whom taught at or were associated with the University of Chicago, often referred to as the “Chicago School,” led the way out of the intellectual morass that had become antitrust law. They argued that consumer welfare would be maximized through economic efficiency. They applied rigorous economic analysis to various business practices to determine whether those practices had the effect of constraining production, which is the principle method by which monopolists reap “monopoly profits.” They have been severely criticized, however, for ignoring issues of distributive justice. For example, they had little to say about income inequality. Nonetheless, they should be credited for demonstrating the salutary effects of vertical integration and for showing that some forms of exclusive dealing and price discrimination benefit both producers and consumers by giving incentives for increasing production.

Monopolies and distributive justice

Two of the leading legal scholars associated with the Chicago School were Richard Posner and Robert Bork. Posner, a very influential federal appellate judge and author, was educated at Harvard, but taught at Chicago. He became famous by applying economic analysis not only to antitrust, but many other fields of law. Bork, another influential federal appellate judge, was educated at Chicago (both undergraduate and law school) and taught at the Yale Law School before ascending to the bench.

In Amy Klobuchar’s telling, Bork is a bete noire of antitrust law. His 1978 book, The Antitrust Paradox, subtitled A Policy at War with Itself, pointed out how confusion about the ends of antitrust had produced a mishmash of case law by encouraging a costly form of protection for inefficient and uncompetitive small businesses. Although the book is very well written, has been cited more than 100 times in federal court cases, and is often thought of as ground breaking, it contains very little that was not already covered in the Competition and Monopoly course I took in 1967. I suspect that Bork learned a lot of his economic analysis of law from the same course a few years before me.

Bork’s book, although not particularly original, did eloquently and succinctly summarize a large corpus of law review articles (many by Posner) and less trenchant books that had preceded it. Whether Bork or his predecessors were the cause, antitrust law changed significantly in the 1980s and thereafter. For example, the Robinson-Patman Act was interpreted very narrowly by the courts, and the federal regulators (the Justice Department and the Federal Trade Commission) pretty much ignored it. Moreover, many mergers and acquisitions that would have been challenged even a few years before were allowed to take place.

via Yale School of Management

Despite her own academic background, Senator Klobuchar rejects the basic outlook and many of the conclusions of the Chicago School. For example, she seems more concerned with the basic fairness of specific business practices than with fundamental market structure. She maintains that the Chicago School’s conservative orthodoxy is unequal to the very different challenges of the 21st century economy. In fact, she specifically contrasts the Chicago School with the “Harvard” approach, and sides with the Crimson over the Maroon.

One of her principal recommendations is to amend Section Seven of the Clayton Act to make it easier for the government to forestall uncompetitive mergers or acquisitions. She would ease the standard of proof of harm to competition and shift the burden of proof from the government to the parties to the proposed transaction. Here she would find herself in agreement with the Chicago School if the proposed merger were “horizontal” (i.e., among direct competitors), but opposed to the Chicago School if the proposed transaction were “vertical” (i.e., among suppliers and customers) or “conglomerate” (i.e., among unrelated parties).

She also spends significant ink on her desire to protect competition in the beer market. As she explained in a news release from her Senate office:

“Because major wholesalers typically carry either Anheuser-Busch InBev (ABI) or SABMiller products, ABI might be able to curb the growth of craft brewers by limiting access to wholesalers. ABI has acquired seven craft brewers since 2014 and four since merger negotiations with SABMiller began. Further, ABI’s incentive program seems to penalize wholesalers for carrying a craft brewer that has achieved more than a modest level of success.”

My own experience as general counsel for a consumer products company showed me that what Senator Klobuchar avers indeed takes place. Wholesalers and retailers can be “persuaded” by large companies through profits and incentive programs not only to limit access to competing products, but even to affect shelf placement if they continue to carry the competitor’s products, which of course affects sales.

In Senator Klobuchar’s view, reinvigorated enforcement of the antitrust laws could accomplish a great many things, some or which go beyond the usually understood purpose of those laws. For example, she asserts that antitrust enforcement helps to raise wages. That’s possible, but certainly not inevitable. Increasing competition among firms incentivizes them, ceteris paribus, to minimize costs — and wages are a cost of doing business. Moreover, near-monopolists like Google of today and General Motors of the 1950s are known to pay very high wages. On the other hand, she correctly asserts that breaking up today’s tech giants would reduce their inordinate influence on opinions and politics, whether or not it had any effect in their respective industries.

In general, I agree with much of what Senator Klobuchar says and recommends, e.g., for antitrust nerds, the Illinois Brick case definitely should be overturned. [See Illinois Brick Company et al., v. State of Illinois et al., 431 U.S. 720, 1977.] However I have to express my disagreement on three issues of significant importance.

First, she recommends increased enforcement against “predatory pricing.” Despite the Herculean efforts of Professor Phillip Areeda of the Harvard Law School to define it, the concept of predatory, as opposed to just plain competitive, pricing remains elusive in practice.

Via Market Business News

I think the law’s current skepticism toward the concept is justified. Indeed, the classic case of alleged predatory pricing, Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911), has undergone significant reevaluation beginning with John S. McGee’s article, Predatory Price Cutting: The Standard Oil (N. J.) Case, in the Journal of Law and Economics. [John S. McGee, “Predatory Price Cutting: The Standard Oil (N.J.) Case,” 1 J. Law & Econ. 137 (1958)] It turns out that Rockefeller built the Standard Oil monopoly not by driving his competitors out of business, but rather by the more benign method of eliminating competition by purchasing those competitors. The case was rightly decided because it found a series of anti-competitive contracts (the acquisition of competitors), not because it found that Standard Oil’s pricing practices were illegal.

Second, the Senator casts a wary eye on vertical mergers, i.e., mergers between producers and their customers or suppliers. But the Chicago School pointed out that vertical mergers do not increase either party’s share of its own market. Rather, such mergers do reduce the transaction costs between the parties, making both of them more efficient.

Third, Senator Klobuchar asserts that monopsonies (single buyers) or oligopsonies (very few buyers) are as harmful as monopolies (single sellers) or oligopolies (very few buyers). Monopolists harm consumers and the economy as a whole by restricting production in order to charge non-competitive prices. Monopsonies, on the other hand, have no such power, unless they are also monopolies. Monopsonies actually tend to increase production by exerting their buying power to obtain competitive (low) prices from their suppliers.

I commend the Senator for her thorough research and her heart-felt efforts to improve the functioning and fairness of the economy. Her book provides a valuable lesson in revealing how relaxed (or should I say, lax) enforcement of the antitrust laws has allowed significant concentration in some industries such as telecommunications. E.g., T-Mobile and Sprint were allowed to merge. And consumers are well-acquainted with the deleterious effects of cable mergers.

Her book is a worthwhile effort to acquaint the general reading public with some important issues of public policy. For a more rigorous academic treatment and a more traditional perspective on the same issues, see Richard Posner’s Antitrust Law, Second Edition (2001), the University of Chicago Press.

Antitrust by Amy Klobuchar is published by Knopf Publishing Group, 2021

July 22, 1937 – U.S. Senate Rejects FDR’s Court-Packing Plan

On February 5, 1937, President Franklin Delano Roosevelt unveiled the Judicial Procedures Reform Bill of 1937, which proposed adding one new judge to the federal judicial system for every active judge over the age of seventy. The result would create fifty new judgeships, including up to six new Supreme Court justices.

Roosevelt had been frustrated with the US Supreme Court’s treatment of some of his economic reforms. During his first term, the Supreme Court had struck down several New Deal measures intended to bolster economic recovery during the Great Depression. The President’s plan would allow him to appoint new judges friendly to his administration, although FDR couched it in terms suggesting that he was trying to streamline the Court system and ease its caseload.

President Franklin Delano Roosevelt

President Franklin Delano Roosevelt

The plan caused an uproar from legislators, bar associations, and the public. The Senate Judiciary Committee held hearings on the bill, and subsequently failed to report it favorably out of committee.

On February 8, 1937, the Senate Judiciary Committee met to consider President Roosevelt's request to increase membership on the Supreme Court.  Library of Congress, Prints and Photographs Division, Washington, D.C.

On February 8, 1937, the Senate Judiciary Committee met to consider President Roosevelt’s request to increase membership on the Supreme Court.  Library of Congress, Prints and Photographs Division, Washington, D.C.

The full Senate began debating the measure in July, and on this day in history – July 22, 1937 – the U.S. Senate rejected the proposed plan by a vote of 70-20. 

Nevertheless, FDR managed to get what he wanted eventually by serving twelve years in office, which enabled him to appoint eight justices to the Court.

You can listen to FDR’s “fireside chat” on March 9, 1937 in which he discusses the court packing proposal, here.

June 15, 1877 – Death of Caroline Norton, English Women’s Rights Activist

Caroline Norton, nee Sheridan, was born in London in 1808, and in 1827 married George Norton, a barrister and M.P. According to a history of the fight for women’s rights at the time, her husband was jealous, possessive, and given to violent fits of drunkenness during which George was abusive.

Caroline left him in 1836, trying to subsist on her earnings as an author. George successfully sued for these in court as his own, since husbands had control over their wive’s money. Caroline exacted a condign form of revenge, as reported by a biography by Jane Gray Perkins. Running up bills in her husband’s name, Caroline told the creditors that if they wished to be paid, they could sue her husband.

Caroline Norton (1808-1877)

Not long after their separation, Norton abducted their sons, hiding them with relatives in Scotland and later in Yorkshire, refusing to tell Caroline where they were. Norton accused Caroline of being involved in an ongoing affair with her close friend, Lord Melbourne, who was the Whig Prime Minister. Norton then tried unsuccessfully to blackmail Melbourne, and when that scheme failed, took the Prime Minister to court.

The trial lasted nine days, and in the end the jury threw out Norton’s claim, siding with Lord Melbourne. However, the resulting publicity almost brought down the government. The scandal eventually died away, but Caroline’s reputation was ruined and her friendship with Lord Melbourne destroyed. Norton continued to prevent Caroline from seeing her three sons, and blocked her from receiving a divorce. According to English law in 1836, children were the legal property of their father, and there was little Caroline could do to regain custody.

Having no other recourse, Caroline became involved in advocating the passage of laws promoting social justice, especially those granting rights to married and divorced women.

When Parliament debated the subject of divorce reform in 1855, Caroline submitted to the members a detailed account of her own marriage, and described the difficulties faced by women as the result of existing laws.

Primarily because of Caroline’s intense campaigning, which included a letter to Queen Victoria, Parliament passed the Custody of Infants Act 1839, the Matrimonial Causes Act 1857, and the Married Women’s Property Act 1870.

Under the Custody of Children Act, legally separated or divorced wives – provided they had not been found guilty of criminal conversation – were granted the right to custody of their children up to the age of seven, and periodic access thereafter. However, because women needed to petition in the Court of Chancery, in practice few women had the financial means to petition for their rights. [Per the UK Parliament, the Infant Custody Act of 1873 changed the direction of the 1839 Act by indicating that the correct principle for deciding custody was the needs of the child rather than the rights of either parent. The Act therefore allowed mothers to petition for custody or access to children below the age of 16, but not in all circumstances.]

The Matrimonial Causes Act reformed the law on divorce, making divorce more affordable, and established a model of marriage based on contract.

The Married Women’s Property Act 1870 allowed married women to inherit property and take court action on their own behalf. The Act granted married women in the UK, for the first time, a separate legal identity from their husband.

While Caroline fought to extend women’s legal rights, she had no interest in the 19th-century women’s movement for women’s suffrage. She even stated in 1838 in a newspaper article,

The natural position of woman is inferiority to man. Amen! That is a thing of God’s appointing, not of man’s devising. I believe it sincerely, as part of my religion. I never pretended to the wild and ridiculous doctrine of equality.”

Caroline finally became free of George Norton with his death in 1875. She married an old friend, Scottish historical writer and politician Sir W. Stirling Maxwell in March 1877. Caroline died in London three months later.

April 22, 1864 – Congress Passed an Act Allowing “In God We Trust” to be Engraved on U.S. Coins

As a Treasury Department website reports, during the Civil War, Secretary of the Treasury Salmon P. Chase received many appeals from devout persons throughout the country to “recognize the Deity on United States coins.” As one petitioner argued, “You are probably a Christian. What if our Republic were not shattered beyond reconstruction? Would not the antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation?”

Heaven forfend!

As a result, in a letter dated November 20, 1861, Secretary Chase instructed James Pollock, Director of the Mint at Philadelphia, to prepare a motto:

Dear Sir: No nation can be strong except in the strength of God, or safe except in His defense. The trust of our people in God should be declared on our national coins.

You will cause a device to be prepared without unnecessary delay with a motto expressing in the fewest and tersest words possible this national recognition.”

In December 1863, the Director of the Mint submitted designs for new one-cent coin, two-cent coin, and three-cent coin to Secretary Chase for approval. He proposed that upon the designs either OUR COUNTRY; OUR GOD or GOD, OUR TRUST should appear as a motto on the coins. In a letter to the Mint Director on December 9, 1863, Secretary Chase responded that he thought the words should read “IN GOD WE TRUST.”

Congress passed legislation allowing for the change on this day in history.

“IN GOD WE TRUST” first appeared on the 1864 two-cent coin.

You can read the text of the act here.

Later, Congress passed additional coinage acts to expand the coverage of the first.

March 8, 1922 – Birth of Ralph Baer, “Father of Video Games”

Ralph Baer, born on this day in history, was an engineer who conceived the idea of playing games on a television screen around 1966.

Baer was born in Germany, but his family, experiencing discrimination for being Jewish, moved to New York City in 1938, just prior to the ban on Jewish emigration. (The Nazis did not want Jews to leave; they preferred to confiscate their assets and then kill them.) Baer later became a naturalized U.S. citizen.

Ralph Baer

At first, Baer worked in a factory for a weekly wage of twelve dollars. After seeing an advertisement at a bus station for education in the budding electronics field, he quit his job to study at the National Radio Institute. In 1943 he was drafted to fight in World War II and assigned to military intelligence at the United States Army headquarters in London. Having his secondary education funded by the G.I. Bill, Baer was able to graduate in 1949 with a Bachelor of Science degree in in television engineering – unique at the time – from the American Television Institute of Technology in Chicago.

Baer worked his way up in several engineering companies, eventually joining defense contractor Sanders Associates in Nashua, New Hampshire in 1956, where he stayed until retiring in 1987. Baer’s primary responsibility at Sanders was overseeing about 500 engineers in the development of electronic systems being used for military applications. Out of this work came the concept in 1966 of a home video game console.

Ralph Baer shows the prototype of the first games console. Credit: Jens Wolf /DPA /Landov

According to his 2014 New York Times obituary, an intrigued boss gave him $2,000 for research and $500 for materials and assigned two men to work with him. Baer developed a number of games that became part of his ‘Brown Box’ – a multi-game console. The games included ping-pong, handball, soccer, volleyball, target shooting, checkers, and golf.

In March 1971, Mr. Baer and his employer filed for the first video game patent, which was granted in April 1973 as Patent No. 3,728,480. It made an extraordinarily large claim to a legal monopoly for any product that included a domestic television with circuits capable of producing and controlling dots on a screen.

Sanders Associates licensed its system to Magnavox, which began selling it as Odyssey in the summer of 1972 as the first home video game console.

NPR explained:

The primitive system was all hardware and used “program cards” for games. Plastic overlays for the television screen provided color. Priced at $100 (though Baer had recommended $19.95), the Odyssey sold more than 100,000 units its first year and 300,000 by 1975.”

The Magnavox Odyssey — derived from Ralph Baer’s “Brown Box” invention — was sold as the first home video game system in 1972. Credit: Rich Strauss/National Museum of American History

In his 2014 obituary, the New York Times recounted:

Several months after Odyssey hit the market, Atari came out with the first arcade video game, Pong. Though Pong became better known than Odyssey and was in some ways more agile, Sanders and Magnavox immediately saw it as an infringement on their patent.

They sued Atari in 1974 for usurping their rights. Atari settled with them by paying $1.5 million to become Odyssey’s second licensee. Over the next 20 years, Magnavox went on to sue dozens more companies, winning more than $100 million. Mr. Baer often testified.”

The Times also noted that “Mr. Baer’s contraption represented the beginnings of a change in man’s relationship with machines.”

In 2006, Baer was a recipient of the National Medal of Technology by President George W. Bush. Baer was also admitted to the National Inventors Hall of Fame in 2010. He donated much of his collection of early video game prototypes to museums, including the Smithsonian Institution. Baer died at his home in Manchester, New Hampshire on December 6, 2014 at age 92.

The value of the video game market in the U.S. in 2020 was calculated to be 60.4 billion U.S. dollars. Statista.com also shows the incredible growth of the worldwide market.

Via Statista.com

March 5 – National Absinthe Day & Legal History of Absinthe

Absinthe is a green alcoholic beverage that takes its name from Artemisia absinthium, the botanical name for the bitter herb wormwood, known in French as ‘Grande absinthe’. The essential oils in wormwood contain the chemical Thujone, which is a toxin when taken in large amounts. [Wondering how to pronounce Thujone? A video on the pronunciation is here.] Thujone is said to be responsible for Absinthe’s alleged mind-damaging properties. (Another factor might be the high-level of alcohol contained in Absinthe, typically between 53 and 74%.)

Wormwood (scientific name Artemisia absinthium L.)

To be considered “Absinthe,” the spirit must contain not only wormwood, but also green anise and sweet fennel. But absinthe may contain other plants, including coriander, hyssop, gentian, licorice root, lemon balm, and star anise, inter alia. Absinthe is most often described as having the flavor of licorice, with a bitter aftertaste. The drink was created at the end of the 18th Century, and a distillery was opened in 1797 by Henry-Louis Pernod. Colloquially, the drink is also known as Queen of Poisons, The Green Fairy, The Green Goddess, and The Emerald Muse.

The Absinthe Drinker (Shown with the Green Fairy) by Viktor Oliva, 1901

Originally, absinthe gained its popularity from its use in North Africa during the French military campaigns of the 1840s as a disease treatment and water purifier. The French soldiers brought their taste for it back to the cafés of Paris. [The French also brought syphilis to Italy in the 16th Century but I digress.] From the mid 19th century onwards absinthe became associated with bohemian Paris and was featured frequently in the paintings of such artists as Manet, Van Gogh and Picasso. When they were not painting it, they were drinking it in large quantities.

As the BBC reports:

“During the Belle Époque, the Green Fairy . . . was the drink of choice for so many writers and artists in Paris that five o’clock was known as the Green Hour, a happy hour when cafes filled with drinkers sitting with glasses of the verdant liquor. Absinthe solidified or destroyed friendships, and created visions and dream-like states that filtered into artistic work. It shaped Symbolism, Surrealism, Modernism, Impressionism, Post-Impressionism and Cubism. . . .

Rimbaud, Baudelaire, Paul Verlaine, Émile Zola, Alfred Jarry and Oscar Wilde were among scores of writers who were notorious absinthe drinkers. . . . They wrote of its addictive appeal and effect on the creative process, and set their work in an absinthe-saturated milieu.

Contemporaries cited absinthe as shortening the lives of Baudelaire, Jarry and poets Verlaine and Alfred de Musset, among others. It may even have precipitated Vincent Van Gogh cutting off his ear.”

L’Absinthe by Edgar Degas

Absinthe supplanted wine as the French national beverage during the phylloxera epidemic of the late 19th century, which destroyed most of France’s vineyards. By 1905, there were hundreds of distilleries in all corners of France producing absinthe. Its success inspired many imitators, who soon introduced cheaper, adulterated and even poisonous imitations onto the market. These adulterated versions were in turn partially responsible for the reputation that absinthe gained for causing delirium and madness in those who drank it. It has also been speculated that the bad effects of poorly-made absinthe were trumped up by French vintners in an effort to rid themselves of a dangerous economic rival.

The Absinthe Drinkers by Edvard Munch

Blamed for causing psychosis, even murder, by 1915 absinthe was banned in France, Switzerland, the US and most of Europe. “The green muse” was eventually banned in most countries beginning in 1908. The United States outlawed it in 1912. Pernod and other companies came out with new, lower alcohol content, wormwood-free, licorice-anise flavored liqueurs to replace Absinthe, with names such as Pernod, anis, anisette, pastis, ouzo and raki.

The Absinthe Drinker by Édouard Manet

Absinthe is now legal again in the European Union. Cheaper varieties use a mix of herbal oils added to diluted alcohol. The better, more traditional and more expensive varieties are made by macerating wormwood, green anise and fennel together in 80-90% alcohol, infusing it with other herbs, then distilling the result.

The Absinthe Drinker by Picasso

Absinthe is usually served with a mixture of 3 to 5 parts water to one part liquor, added to the glass over a slotted spoon. The spoon holds a sugar cube over the glass while the water is dripped slowly into the absinthe. (Sugar will not dissolve in the 68% to 72% alcohol of neat absinthe so spoons are used to suspend the sugar over the glass while it dissolves in the water that poured over it.)

Absinthe spoons, Wikipedia

As of October 2007, the U.S. Department of the Treasury approved the use of the term “absinthe” on the label of a distilled spirits product and in related advertisements only if the product is “thujone-free” pursuant to the Food and Drug Administration’s (FDA) regulations. Absinthe containing thujone levels greater than 10 ppm (parts per million) cannot be sold in the United States, nor is it permitted to be shipped into this country; it is a “prohibited” item and is subject to being seized by the United States Customs.

References:

Absinthe Online
Absinthe Buyer’s Guide
Facts and Trivia About Absinthe
Le Fee Verte

Happy National Absinthe Day!!

***

March 3, 1817 – Congress Provides for Reports of Supreme Court Decisions

As Harvard Law Professor Richard J. Lazarus pointed out in “The (Non)Finality of Supreme Court Opinions,” 128 Harvard Law Review 540, 2014:

According to the Supreme Court, “[o]nly the bound volumes of the United States Reports contain the final, official text of [the Court’s] opinions.” Those volumes are published several years after the original opinion announcements. For instance, the Court handed down its final merits decisions of the October Term 2007 on June 26, 2008. The last volume of the corresponding set of United States Reports, including those final decisions, was not published until five years later. [citations omitted]”

But at least the process is now routinized. In the early years of the Court, not all rulings were reported, and those that were would be re-created from the notes the Reporter took, plus any notes the Justice provided or that other attorneys provided. Moreover, without official records, the reporter could take liberties in his interpretation. Lazarus observed, “The potential for divergence between the Court’s orally announced ruling and the reporter’s subsequent written opinion was great. . . . “

Alexander J. Dallas, 1st Supreme Court Reporter

Law Professor Edward A. Hartnett, writing in “A Matter of Judgment, Not a Matter of Opinion,” NYU Law Review, Vol. 74:123, 1999, points out:

[The reporters] exercised their discretion in deciding what Court opinions or portions thereof to publish. The opinions that did appear in the unofficial reporters were often inaccurate due to delay and expense in reporting. Such failings may have been ‘inherent in a system dedicated to the preservation of opinions… often extemporaneously delivered from only the most rudimentary notes.’ [citing Craig Joyce, “The Rise of the Supreme Court Reporter An Institutional Perspective on Marshall Court Ascendancy, 83 Mich. L Rev. 1291, 1304-05, 1312 (1985), in discussing the work of Reporters Alexander Dallas and William Cranch]”

Professor Hartnett avers that the reliability of the reporting of Supreme Court opinions improved after the appointment of Henry Wheaton as the official reporter. As part of an effort to improve speed and accuracy, the Justices promised Wheaton “any written opinions they might prepare, or notes they might make in connection with their oral opinions.'” Nevertheless, Wheaton still used editorial discretion in deciding which opinions to publish and which to omit, and his volumes did not enjoy wide circulation.

William Cranch, 2nd Supreme Court Reporter

Congress attempted to remedy the problem by the passage of an Act at ch.63, §1, 3 Stat. 376 on this date in history, March 3, 1817. The “Act to provide for reports of the decisions of the Supreme Court” not only stipulated that a reporter would be appointed and paid an annual compensation, but added:

The said compensation shall not be paid unless the said reporter shall print and publish, or cause to be printed and published, the decisions of said court, made during the time he shall act as such reporter, within six months after such decisions shall be made, and shall deliver eighty copies of the decisions, so printed and published, to the Secretary of State, without any expense to the United States, and which copies shall be distributed as follows, to wit….”

(A long list ensues, at the completion of which the Act states that “the residue of said copies shall be deposited in, and become part of, the library of Congress.”)

Henry Wheaton, 3rd Supreme Court Reporter

The current version of the law relating to SCOTUS decision reporting can be found at 28 U.S. Code § 411 – Supreme Court reports; printing, binding, and distribution:

(a) The decisions of the Supreme Court of the United States shall be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition, to be charged to the proper appropriation for the judiciary. The number and distribution of the copies shall be under the control of the Joint Committee on Printing.
(b) Reports printed prior to June 12, 1926, shall not be furnished the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force.
(c) The Director of the Government Publishing Office, or other printer designated by the Supreme Court of the United States, upon request, shall furnish to the Superintendent of Documents the reports required to be distributed under the provisions of this section.”

Review of “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” by Preet Bharara

Preet Bharara served as the United States Attorney for the Southern District of New York (SDNY) from 2009 to 2017. In that position, as the New York Times noted, Bharara “made a name for himself as one of the nation’s most aggressive and outspoken prosecutors of public corruption and Wall Street crime.” During his tenure, the U.S. Attorney’s Office for the SDNY prosecuted nearly 100 Wall Street executives for insider trading and other offenses. He reached historic settlements and fines with the four largest banks in the United States, and closed multibillion-dollar hedge funds for activities including insider trading.

Nevertheless, in March, 2017, he and 45 other United States attorneys around the country were abruptly told to resign by President Trump. This book is not about President Trump, however, nor about the decision by Trump to fire Bharara. Rather, this very entertaining book provides an overview of the criminal justice system by offering fascinating anecdotes about famous cases that went through Bharara’s office.

For those who love “true crime” podcasts or even “Law and Order,” this book will not disappoint.

The book is divided into four sections: Inquiry, Accusation, Judgment, and Punishment. Bharara has two main underlying themes. One is that all of the actors involved, on both sides of the law, are human beings, and have human needs, and make human mistakes. Another, but not unrelated to the first, is that rapport works better than coercion and brutality – especially in the information gathering stages, and that when the prosecution shows respect to the identity and needs of a perpetrator, it is infinitely more fruitful. [Or as my parents used to admonish me (uselessly, it’s sad to say), “You can catch more flies with honey than with vinegar.”]

The chapter on methods of interrogation is especially good at illustrating that point. Bharara contends that whether interrogations are done in peacetime or war, or on criminals or terrorists, some methods work consistently better than others. For example, Bharara provides evidence that the notorious torture of alleged terrorists by the CIA produced very little useful information. On the other hand, he maintains, kindness, empathy, and building relationships, rather than brute force, have proven effective in getting people to talk. What most perpetrators want, Bharara argues, is to be respected for who they are and to get to tell their own story, rather than having lawyers or media place them in unflattering boxes. Treat them like human beings, Bharara says, and they will start providing names, connections, and background. The least likely to talk or flip? Surprisingly, Bharara writes, it’s not Islamic terrorists as many people would guess, but police. Their code of silence, preventing the police from incriminating other officers for their wrongdoings, is a harder barrier to crack than even the Mafia’s Law of Omertà – the code of honor that places importance on non-cooperation with outsiders, especially those in law enforcement.

Some of the stories are shocking, and all are thought-provoking. Perhaps the saddest anecdotes come out of Bharara’s coverage of Rikers Island, in the section on punishment.

Rikers Island in New York is one of the world’s largest correctional institutions. Approximately 85% of those detained there have not been convicted of a crime, but rather are awaiting trial, either held without bail or remanded in custody. The others in the prison population have been convicted and are serving short sentences. But regardless of why they are in Rikers, prisoners must deal with shocking brutality. Reports indicate Rikers is notorious for violence within the walls — a place where inmates attack inmates, inmates attack correction officers, and correction officers attack inmates. An exposé in Mother Jones found:

“When it comes to ignominies, New York City’s island jail complex has it all: inmate violence, staff brutality, rape, abuse of adolescents and the mentally ill, and one of the nation’s highest rates of solitary confinement. Rikers, which hosts 10 separate jails, has been the target of dozens of lawsuits and numerous exposés. Yet the East River island remains a dismal and dangerous place for the 12,000 or more men, women, and children held there on any given day—mostly pretrial defendants who can’t make bail and nonviolent offenders with sentences too short to ship them upstate.”

Coming up with fair methods of punishment, Bharara writes, remains a troublesome problem with no clear solutions.

Evaluation: This book is rich with informative and thought-provoking observations about doing justice, and how much “being human” sometimes helps and sometimes interferes. Bharara has a good sense of humor, skill as a raconteur, and a great deal to offer through his experiences as U.S. Attorney. I did not expect this book to be so engaging, but was happily surprised by how much I enjoyed it and learned from it.

Rating: 4/5

Published in hardcover by Knopf Publishing Group, 2019

A Few Notes on the Audio Production:

I listened to this book on audio. The author narrates the book in his distinctive clipped speaking style. But he comes across as warm, intelligent, thoughtful, and caring, and dedicated to treating everyone – no matter the crime – with consideration and respect.

Published unabridged on 9 CDs (approximately 10 1/2 listening hours) by Penguin Random House Audio, 2019